The plaintiffs' suit was misconceived as they only had common ownership/right over the common pathway/road and not easementary right. The suit was also found to be bad for non-joinder of proper and necessary parties.

T. RAVINDRAN, J.

1. In this Second Appeal, challenge is made to the judgment and decree dated 08.10.2014 passed in A.S.No.54 of 2012 on the file of the Subordinate Court, Mannargudi, confirming the judgment and decree dated 11.06.2012 passed in O.S.No.76 of 2008 on the file of the District Munsif Court, Mannargudi.

2. Parties are referred to as per the rankings in the trial court.

3. The Second Appeal has been admitted on the following substantial questions of law.

(a) Whether the judgment and decree of the Courts below are sustainable in law when the Plaintiffs/Appellants have proved their right to use the 'B' Schedule mentioned property out of Easement of Necessity to reach the lands situated in 'A' Schedule mentioned properties purchased from the predecessor in title and joint owners with the 1st defendant ever as per the recitals made in Partition Deed Ex.A1?

(b) Whether the findings of the Courts below are vitiated and unsustainable in law on account of misreading the oral evidence of the D.W.1, who has clearly admitted the existence of the suit passage is the main access to reach the 'A' Schedule mentioned properties purchased under different sale deeds from the brothers of the 1st defendant/1st respondent?

(c) Whether the Lower Appellate Court is correct in holding that as per Ex.A4 and Ex.A5 the right given is relating to an immovable property which requires registration under Sec.17(1)(b) of the registration, when the family partition deed Ex.A1 clearly indicate that the other joint owners along with the 1st defendant can make use of the passage set a part to reach the lands allotted to them under the said partition?

4. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

5. The suit has been laid by the plaintiffs seeking the relief of declaration that they and the second defendant are having the right of easement of necessity over the common way described in the plaint 'B' schedule for reaching their lands described in the plaint 'A' schedule and for the relief of permanent injunction restraining the first defendant and his men from interfering with their right to use the common pathway described in the plaint 'B' schedule.

6. The plaintiffs based their case mainly upon the sale deeds marked as Exs.A2 to A5. Materials placed on record go to show that the plaintiffs' vendor Ramachandran had acquired the properties comprised in Exs.A2 and A3 sale deeds from Selva Kumar and Raghunathan. The said Selvakumar and Raghunathan are the brothers of the first defendant. It is the case of the plaintiffs that they had acquired the properties described in items 1 to 3 of the plant 'A' schedule from Ramachandran by way of Ex.A4 sale deed. It is further case of the plaintiffs that they had acquired item 4 of the plaint 'A' schedule properties by way of a sale deed marked as Ex.A5 executed by V.K. Shanmugha. Thus it seen that the plaintiffs' claim right to the pathway described in the 'B' schedule property based on the above said sale deeds.

7. It is not in dispute that the first defendant and his family members effected the partition of the properties belonging to them by way of a partition deed dated 25.06.1973 and the copy of the above said deed has been marked as Ex.A1. On a perusal of Ex.A1, it is found that various schedule properties had been allotted to the first defendant and his family members as described therein and it is also mentioned in the above said partition deed that the four sharers involved therein, they should enjoy the road running from Vadavarru channel [up to R.S.No.230-14(b) eastern boundary line] through R.S.Nos.227, 228, 229 and 230 in common. For a better understanding of the above said right conferred upon the four sharers in respect of the above said pathway/road, the extract as found in the above said partition deed with reference to the same is reproduced below:

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